Judge Nicholas G. Garaufis will call the shots.
The 2nd Circuit took less than 24 hours after hearing oral arguments to deny Keith Raniere’s petition for a writ of mandamus.
Raniere sought the appellate court to disqualify Judge Garaufis from Raniere’s case in the future or in the alternative to decide on his disqualification before ruling on Ranierer’s pending motion before him.
Raniere currently has a Rule 33 motion seeking a new trial based on “newly discovered” evidence before Judge Garaufis.
He previously motioned Judge Garuafis to disqualify himself based on his argument that the judge had shown bias toward him.
Raniere alleges in his Rule 33 motion that retained forensic experts discovered evidence that the FBI tampered with metadata on photographs found on his hard drive to frame him for predicate acts of possession of child pornography and exploitation of a minor.
The subject of the photographs is a 32-year-old Mexican woman, identified as Camila, who was 15 years old at the time the FBI alleged the metadata dated the pictures – in November 2005.
Judge Garaufis has several options. He can choose to disqualify or not disqualify himself first.
Or he can decide on the Rule 33 motion first.
If he chooses not to disqualify himself or chooses to decide on the Rule 33 motion first, he has two more choices.’
He can hold an evidentiary hearing on the Rule 33 motion or rule based on the filed documents.
Judge Garuafis can dismiss the Rule 33 without further discussion if he decides there are no sufficient grounds for a hearing or the motion fails because the evidence is not or should not be deemed “newly discovered.”
To date, only Raniere has filed papers with Judge Garaufis in support of the FBI tampering evidence.
If Judge Garaufis decides to consider the Rule 33 motion, the US Department of Justice will have an opportunity to make a written reply to Raniere’s filing.
In a worst-case scenario for Raniere, Judge Garaufis could dismiss the Rule 33 first, without a hearing, then disqualify himself from future motions.
If Judge Garaufis denies the Rule 33 motion, Raniere would still have a right to appeal the decision.
If Judge Garaufis chooses to disqualify himself before deciding on the Rule 33 motion, the administrative judge for the district court would assign another judge to decide the motion.
If Judge Garaufis or another assigned judge chooses to hold an evidentiary hearing, witnesses could be called to testify about evidence of FBI tampering.
Among the witnesses likely to be called are Raniere’s retained forensic experts, including Dr. J Richard Kiper a former trainer of trainers of forensic examinations at the FBI. He has filed a detailed report with the court on his findings, claiming there is proof to a “scientific certainty” that digital evidence used in the case was altered while in FBI custody.
At yesterday’s oral argument in the 2nd Circuit, Raniere’s attorney Joseph M. Tully argued that Judge Garaufis, who presided over Raniere’s six-week jury trial in 2019, was biased against Raniere.
Tully alleged three instances of Judge Garaufis’ bias.
Raniere attorney Joseph Tully of California.
The first, during the trial, when Judge Garaufis halted the cross-examination of prosecution witness Lauren Salzman.
The second was at Raniere’s restitution hearing when Judge Garaufis had an contentious exchange with Raniere’s former attorney Marc Fernich which led to an unusual 30 minute staring contest while court spectators sat in stunned silence.
The third instance Tully alleged was the triple sentencing guidelines sentence Judge Garuafis handed to Raniere’s co-defendant Clare Bronfman.
Bronfman’s sentencing guidelines were 21-27 months. Judge Garaufis sentenced her to 81 months and cited Bronfman’s “willful blindness” to Raniere’s crimes and her use of litigation to punish Raniere’s enemies.
On September 30, 2020, Clare Bronfman walked into court with her attorneys Ronald Sullivan [l] and Duncan Levin [r] for her sentencing. She did not walk out of court. Judge Nicholas Garaufis remanded her into custody following the hearing where he sentenced her to 81 months.
Bronfman, in what might be called a stupendous blunder, wrote a letter to the judge before sentencing saying she would not disavow Raniere.
On Tuesday, a three judge panel, Justices Pierre N. Leval, Jose A. Cabranes and William J. Nardini, heard Tully’s and DOJ Assistant US Attorney Tanya Hajjar’s arguments on the petition to order remove Judge Garaufis from hearing Raniere’s motions.
Tully said the judge’s removal “is not only common sense. This is not only logical and it ensures fairness and it protects the integrity of our entire judicial system.”
Raniere’s Rule 33 motion, filed last May, stayed pending his appeal.
Now that the 2nd Circuit denied Raniere’s appeal, his Rule 33 motion is ripe to be heard.
Yesterday, the three-judge panel told Tully and Hajjar they would consider Raniere’s petition. Today they denied it.
“Upon due consideration, it is hereby ORDERED that the petition is DENIED because Petitioner has not demonstrated that he lacks an adequate, alternative means of obtaining relief, that his right to the writ is clear and indisputable, and that granting the writ is appropriate under the circumstances. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004).”
Yesterday, at the oral argument before the 2nd Circuit panel, there appears to have been a dispute over the meaning of a case Tully cited to support Judge Garaufis’ removal.
Rob Gavin for the Albany Times Union reported in a story entitled Judge tells Raniere attorney to ‘check your notes’.
“One of the judges said such requests [to remove the judge] are typically made only when it was already clear that a judge had exceeded their bounds.
“Tully cited a Second Circuit ruling to buoy his case, only to be quickly told by the panel that he was leaving out some key words.
“’Could you give us the full quotation for that please without omitting any words?’ Nardini asked Tully.
‘The judge said Tully read only part of an opinion. He said the lawyer made it appear the opinion supported the granting such writ requests when, in actually, it supported denying them.
“’I don’t think we ever said to grant — and you’re looking for us to grant,’ the judge told Tully. ‘I’m looking at the quote and you gave us part of the quote without indicating that you were only giving us part of the quote — the part of the quote that goes against your position.’
“Tully said he disagreed, prompting the judge to ask him if he was reading from a concurring opinion.
“’I’m reading from my notes right now,’ Tully replied.
“’Perhaps you should go back and check your notes later to make sure you didn’t omit a key phrase,’ the judge replied.
“’I will. Thank you,’ Tully said.
Mandamus
Keith Raniere filed a petition for a writ of mandamus. Mandamus is Latin and means “We Command.” A writ is an order issued from a court.
A writ of mandamus is an order from higher to lower court. A mandamus is an order to perform a particular act.
A writ of mandamus is extraordinary because it is made before a case concludes. It may be issued by a court at any time, but is usually issued in a case that has already begun.
Generally, the decisions of a lower-court will not be reviewed by higher courts until there is a final judgment.
On the federal level, the appellate review of lower-court decisions are postponed until after a final judgment has been made in the lower court. A writ of mandamus is the one exception.
If a party to a case is dissatisfied with some decision of the trial court, the party may appeal the decision to a higher court with a petition for a writ of mandamus before the case proceeds further.
The writ of mandamus is only issued in exceptional circumstances because it is disruptive of the judicial process, creating disorder and delay in a case.
The writ is appropriate, opined the Court, if the trial court wrongly decided an issue, if failure to reverse that decision would irreparably injure a party, and if there was no other method for relief.
Traditionally writs of mandamus are rare.
Keith Raniere did not get one.
